First of Freedoms?: How religious liberty could become a second-class right

Until recently the status of religious liberty as one of the most fundamental rights of Americans has seldom been seriously challenged. Despite lively controversy about its precise scope and limits, citizens of all faiths have long taken for granted the unique model of religious freedom that has enabled this nation’s diverse religions to flourish and to coexist in relative harmony. Recent legal and political developments, however, suggest that the first freedom in our First Amendment may be en route to becoming a lesser right—one that can be easily overridden by other rights, claims and interests.

This past September, alarm at that prospect prompted the U.S. Catholic bishops to establish a special committee “to help keep bishops alerted to present and ongoing threats to religious liberty at home and abroad and also to help them teach, communicate and mobilize their people in defense of religious liberty.”

When the bishops’ Ad Hoc Committee on Religious Liberty was launched, its chairman, Bishop William Lori of Bridgeport, Conn., stressed concerns about the increasing erosion of conscience protection for individuals and institutions. At the federal level, the top-rated program through which the U.S.C.C.B.’s Migration and Refugee Services agency helps sexual trafficking victims has recently lost its funding for refusing to provide “the full range of reproductive services” including sterilization, abortion and contraception. The U.S. Agency for International Development has required its providers—such as Catholic Relief Services—to include contraception in their H.I.V. prevention and international relief programs, even if that violates the recipients’ moral commitments. And regulations issued by the U.S. Department of Health and Human Services will require most private health insurers to cover sterilization, contraception and drugs that induce abortion.

The legal picture was brightened somewhat by the Supreme Court’s decision in January in the case Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which unanimously confirmed the right of churches to select their own ministers and religious leaders without governmental interference. But religious individuals and institutions continue to face assaults on their constitutional rights from several directions. On Jan. 20, H.H.S. announced that it would not expand its exemption for employers who have religious objections to providing health insurance coverage for sterilization, contraception and abortifacients, despite pleas from leaders of many faiths to do so. The announcement came just one day after Pope Benedict XVI had warned, in an address to U.S. bishops, of “grave threats” to conscience rights and “the church’s public moral witness.”

In 2010 a closely divided Supreme Court gave a green light to public universities that refuse to recognize student religious groups, such as the Christian Legal Society, that restrict membership to persons who support the group’s beliefs. There are countless stories like that of Julea Ward, a Christian student at Eastern Michigan University who is currently contesting her expulsion from the school’s graduate counseling program for refusing to affirm that homosexual behavior is morally acceptable. Conflicts have become particularly intense where religious groups that uphold traditional marriage are concerned. It does not help the churches’ efforts to uphold their teachings in this area that the U.S. Justice Department, in abdicating its responsibility to defend the Defense of Marriage Act, has attributed support for traditional marriage to bigotry.

Emboldened by recent developments, militant secularists are claiming that religious freedom is an unnecessary right. Some maintain that religious people and groups already have all the protection they need or deserve from antidiscrimination laws and constitutional safeguards for freedom of expression and association. Others, more insidiously, treat religious liberty as part of a generic liberty right rather than a distinctive freedom that merits special exemptions and accommodations.

Marginalizing Religion

More is at stake in these challenges than the mission of all churches, including the Catholic Church, to provide vital social services like health care and education. The ability of religious persons and groups to participate in public deliberation about the conditions under which they live, work and raise their children is also at risk. In announcing the formation of the new committee, Cardinal Timothy Dolan, president of the U.S.C.C.B., stated that we are witnessing an unprecedented effort to reduce religion to a private activity, driving religious beliefs and convictions from public life. “Never before,” he said, “have we faced this kind of challenge to our ability to engage in the public square as people of faith.” Archbishop José Gómez, a committee member, added that the stepped-up infringements represent “a sharp break” from our nation’s history, in which religious freedom has always included “the churches’ rights to engage in the public square to help shape our nation’s moral and social fabric—from the abolitionist movement, to the civil rights movement, to the pro-life movement.”

Raising the stakes still higher is the likelihood that increasing marginalization of religion will take a toll on the moral culture that undergirds and nourishes our democratic experiment. Religion plays more than a trivial role in sustaining our complex commitments to freedom, the rule of law and compassion for the disadvantaged. It is probable that religion is an important factor in the minimal social cohesion that a heterogeneous society like ours requires.

That was the belief of many of this nation’s founders, and it is the conclusion reached by a number of the best secular thinkers in Europe, where the trend toward marginalization of religion is more advanced than in the United States. Jürgen Habermas, a professed atheist and political leftist, surprised many of his followers when he announced that he had come to think that the social goods we take for granted in free societies may well have had their source in the legacy of the “Judaic ethic of justice and the Christian ethic of love.” In his case, it was concern about biological engineering and the instrumentalization of human life that led him to conclude that the West cannot abandon its religious heritage without endangering the great social and political advances that are grounded in that heritage. “The liberal state,” he has written, “depends in the long run on mentalities that it cannot produce from its own resources.”

In a similar vein, the Italian philosopher-statesman Marcello Pera, who describes himself as agnostic, argues that “without the Christian vision of the human person, our political life is doomed to become the mere exercise of power and our science to divorce itself from moral wisdom; our technology to become indifferent to ethics and our material well-being blind to our exploitation of others and our environment.”

As if the current legal assaults on religious freedom are not enough to cause concern, a glance at the changing religious landscape in the United States should set off alarm bells as well. Two of the most striking trends revealed in recent surveys of religious attitudes and practices suggest that the status of religious freedom may be shaky even in places where one might have expected it to be secure. The surveys show an increasing proportion of Americans who decline to affiliate with any organized religion (16 percent) and rising numbers of persons who describe themselves as “spiritual” rather than “religious” (between 20 percent and 33 percent). It is reasonable to assume that the more that religion is seen as a private, solitary matter, the greater the likelihood that concern about full, robust free exercise of religion will become less intense. Add to this that the Pew Forum’s survey of young Americans between the ages of 18 and 29 found that they are considerably less religious than previous generations were at the same age.

Success in Exercising Rights  

The U.S. bishops, in establishing their new committee, showed their awareness of the magnitude of the challenges ahead—and of the need for the laity to embrace their responsibility for bringing Christian principles to life in the secular sphere. As Bishop Lori pointed out: “It’s not enough for the bishops and leaders of Church institutions to clearly state our teaching; the government needs to hear from the lay faithful. The more they [government leaders] see a unity and resolve on the part of the whole church, the less likely they are to try to impose such unjust and illegal rules.”

The bishop was speaking from hard-won experience—gained in repulsing an especially brazen assault on religious liberty. In March 2009 the Connecticut state legislature announced hearings on a bill—specifically directed at the Catholic Church—that would have reorganized Catholic parishes by transferring administrative control from the pastor and the bishop to an elected committee of laypersons. Perceiving the bill as a thinly veiled attempt to silence the church on important issues, as well as an unconstitutional interference with internal church affairs, Bishop Lori set about rallying rank-and-file Catholics to the church’s defense. Through the diocesan Web site and the Connecticut Catholic Conference, he and Archbishop Henry Mansell of Hartford and Bishop Michael Cote of Norwich urged people to contact their representatives and to attend a rally at the State Capitol on the day the hearings were to take place.

That day, a crowd of 5,000 persons heard the usually mild-mannered Bishop Lori give a fiery speech in which he recalled other instances in American history where Catholics had been singled out for discriminatory treatment. “Even a first-year law student would know that Bill 1098 is unconstitutional,” he said. “Let’s bury it for good.”

These efforts were successful, and the bill was withdrawn. But the assault on the church did not end there. One month later, citing the role of the diocese in galvanizing opposition to the church reorganization bill, Connecticut’s Office of State Ethics notified the diocese that it was under investigation for failing to register as a lobbyist.

Bishop Lori again went into action. He issued a statement pointing out that when a church encourages its members to exercise their rights of speech and assembly, it is not engaged in lobbying but in constitutionally protected activity. He drove the point home by filing a federal civil rights action against officials of the Office of State Ethics. At that point, Richard Blumenthal, Connecticut’s attorney general, stepped in, calling on the office to drop an investigation that risked chilling constitutionally protected political expression by the church. Shortly thereafter, the office announced it would take no further action against the diocese.

Reflecting on the incident, Bishop Lori said: “It’s really astonishing to think that the state government could imagine that it could exercise that much control over the internal affairs of a particular church. That really alerted me and a lot of people to the present dangers against religious liberty.”

What is remarkable about the Bridgeport controversy is not the brazenness of the attacks on religious liberty. What is truly impressive is the proof that successful resistance to such efforts can be mounted by concerned citizens and courageous bishops. The lesson of Bridgeport is that religious leaders and citizens need not roll over and play dead when their basic freedoms are attacked. Even if immediate, aggressive and intelligent action is not as successful as it was in Connecticut, those who wish to silence religious voices in the public square will at least learn that their actions will have costs.

The lesson could not have come at a better time. The erosion of conscience protection, in particular, has placed church-affiliated hospitals, schools and social services in a difficult position. In November 2011 Catholic Charities in Illinois decided to dismantle its 90-year-old adoption and foster care programs because it was financially unable to continue its court battle against the state’s insistence that they place children with same-sex couples. Faced with the choice between moral compromise and expensive litigation with an uncertain outcome, many institutions have simply retreated from the field. This was the case in 2006 when Catholic Charities in Boston decided to close down its adoption services rather than mount a full-scale challenge to state licensing requirements that do not permit it to operate consistently with Catholic teaching.

No serious person disputes that religious freedom has to be harmonized with other fundamental rights or that it is subject to necessary limitations in the interests of public health and safety. Questions of the legitimate scope and limits of religious liberty are complex and delicate, legally and politically. But religious voices must not be excluded from the processes through which these questions are resolved, and religious freedom must not be demoted from its prominent place among this country’s most cherished freedoms.

Read an open letter from Mary Ann Glendon and others on the "accommodation" proposed by President Obama on the HHS mandate for contraceptive coverage.